Filing a Lawsuit for a Medication Error

If you or someone you love was given the wrong medicine or the wrong dose, your first worry is probably your health, and your next is what went wrong. If you can’t yet tell whether it was a mistake or a side effect, that’s a normal place to start.

Here’s the short answer. A medication error is a preventable mistake at any step from prescribing to monitoring, such as the wrong drug or strength, a pharmacy or bedside mix-up, or a problem nobody caught in time. A known side effect of a correctly prescribed and given drug usually isn’t one, and a drug that’s unsafe in itself raises a product liability question. Depending on where the mistake happened, the prescriber, the pharmacist or pharmacy, the hospital or nursing home, or the drug’s maker may be responsible.

The hard part is often the process that follows: the rules can depend on who made the mistake, and Michigan requires a written notice and a 182-day wait before most malpractice lawsuits (MCL 600.2912b). Michigan’s rules, current as of September 28, 2026, are in the boxes marked “In Michigan.”

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What should you do first?

1. Get medical help. If you think you took the wrong medicine or too much of one, get medical help or call Poison Help at 1-800-222-1222 right away (FDA; MedlinePlus). In an emergency, call 911.
2. Don’t stop or change a prescribed medicine on your own. Talk to your doctor or pharmacist first (FDA).
3. Keep the container and anything left in it, and take it with you if you go to the emergency room (MedlinePlus).

What counts as a medication error?

The National Coordinating Council for Medication Error Reporting and Prevention (NCC MERP) defines a medication error as any “preventable event that may cause or lead to inappropriate medication use or patient harm” while the medicine is in the control of a health professional, the patient or a consumer. Its definition ties errors to steps from prescribing and labeling to dispensing, giving and monitoring a drug (NCC MERP). The Patient Safety Network of the federal Agency for Healthcare Research and Quality (AHRQ PSNet) describes four steps from prescription to patient:

• Ordering (prescribing): choosing the right medicine, dose, frequency and length of treatment.
• Transcribing: reading and interpreting a paper order correctly, whether by a hospital clerk, a pharmacist or a pharmacy technician.
• Dispensing: checking for drug interactions and allergies, then handing out the right amount of the right medicine in the right form.
• Administration: getting the right medicine to the right patient at the right time, generally a job for nurses or other trained staff in hospitals and long-term care.

Monitoring matters too. PSNet’s example is the blood thinner heparin, which needs frequent blood tests: if tests show an overdose but the team doesn’t respond appropriately and the patient bleeds, PSNet counts that as harm that could have been reduced.

Is it an error, a side effect or a defective drug?

Some patients have harmful reactions even when a medicine is prescribed and given appropriately (AHRQ PSNet). The FDA’s examples: getting the wrong drug because two containers’ labels look alike is a preventable error, but a severe allergic reaction to a sulfa drug in someone with no history of allergies isn’t considered preventable (FDA). A side effect can still be part of a claim if it should have been caught sooner, or if you weren’t told about a risk you should have been: in Michigan, a health professional’s failure to “reasonably inform” a patient of a treatment’s risks can itself be negligence (M Civ JI 30.02).

If the drug itself was the problem, because of how it was made or designed or because its warnings were inadequate, the claim is usually against the maker; see how product liability claims work. A pharmacy mix-up is different: Michigan’s Court of Appeals held that a customer who said a drugstore gave him the wrong drug didn’t have a product liability claim, because nothing was inherently dangerous about the pills if properly used (Simmons v Apex Drug Stores, 1993).

Who may be responsible for a medication error?

More than one person or business may share responsibility, and each kind of claim has its own rules.

The prescriber

A doctor or other prescriber who orders the wrong drug or dose, or skips the monitoring a drug needs, may be liable for malpractice if that fell below the recognized standard of practice or care and caused your injury (MCL 600.2912a).

The pharmacist or pharmacy

Michigan’s Court of Appeals has said a pharmacist is held to “a very high standard of care in filling prescriptions” and is liable for harm from negligently supplying a drug other than the one prescribed. A pharmacist generally has no duty to warn you of the side effects of a prescription that’s proper on its face, or to monitor your drug use, but a pharmacy can take on a duty it didn’t otherwise have: one that advertised a computer system to catch harmful drug interactions had to use it with due care (Baker v Arbor Drugs, 1996).

The hospital, nursing home or other facility

An employer is generally responsible for its employees’ wrongful acts on the job, though not for an independent contractor’s (Legal Information Institute), so a hospital or nursing home may answer for a nurse who gave the wrong medicine or dose. Nursing homes in Medicare or Medicaid must also have a licensed pharmacist review each resident’s drug regimen at least monthly and report irregularities to the attending physician, the medical director and the director of nursing. They must keep residents free of unnecessary drugs, such as drugs given in excessive doses or without adequate monitoring, and keep medication error rates below 5%, with no significant medication errors (42 CFR 483.1, 483.45). CMS’s guidance to inspectors defines a significant error as one that causes a resident discomfort or jeopardizes their health and safety (CMS). For warning signs and where to report, see nursing home neglect and elder abuse.

The drug maker

If the drug itself was defective or its warnings were inadequate, the claim is usually against the maker under product liability law. For prescription drugs, Michigan’s Court of Appeals has held that the maker didn’t have to warn the patient directly, because the warning goes to the prescribing doctor, an approach known as the learned-intermediary rule (Mowery v Crittenton Hospital, 1986). The Michigan Supreme Court called the question undecided in 1984 and declined to settle it (In re Certified Questions). The U.S. Supreme Court has held that FDA approval of a brand-name drug’s label isn’t a complete defense to a claim that its warnings were inadequate (Wyeth v. Levine, 2009), but that federal law pre-empts state-law claims that generic drug makers failed to provide adequate warning labels, because a generic’s label must match the brand name’s (PLIVA, Inc. v. Mensing, 2011).

What evidence should you keep?

Don’t throw anything away, and don’t give the container back to the pharmacy. Keep:

• the container and its label, any pills or liquid left, the packaging and any printed information that came with it;
• the receipt, your copy of the prescription and any after-visit or discharge papers;
• dated photos of the label and the pills;
• a timeline: what you took and when, the symptoms that followed, whom you told and what they said, plus your bills and records of missed work.

How do you get your records?

Ask in writing, and keep a copy of each request: the prescriber for your chart and lab results; the pharmacy for its records of what was dispensed; and a hospital or nursing home for the medication administration records (MAR), prescribers’ orders and nursing notes, which federal inspection guidance for nursing homes lists as sources of information about possible medication problems (CMS).

Under HIPAA, a covered health care provider generally must give you access to your medical and billing records within 30 days, or, once, 30 more days if it explains the delay in writing, for no more than a reasonable, cost-based fee (45 CFR 164.501, 164.524). That includes a pharmacy that sends health information electronically in a HIPAA transaction, such as an insurance claim, because dispensing a drug under a prescription counts as health care (45 CFR 160.103). A nursing home in Medicare or Medicaid must let a resident see their records within 24 hours, excluding weekends and holidays (42 CFR 483.10(g)(2)).

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Should you report the error?

Reporting can help keep the same mistake from hurting someone else, but it isn’t a claim for your losses.

• The FDA’s MedWatch program takes voluntary reports of medication errors and other product problems from patients, consumers and health professionals, online or on a paper form (Form FDA 3500B is the consumer version). You don’t need to be certain the product caused the problem, and a report isn’t an admission that medical staff or the product caused it. The FDA uses reports to watch for safety problems and may revise a drug’s labeling or issue a safety communication (FDA).
• The Institute for Safe Medication Practices (ISMP) takes error reports from consumers and health professionals, to find causes and help prevent future errors (ECRI and ISMP).
• A licensing complaint. In Michigan, you can file one online with the Department of Licensing and Regulatory Affairs (LARA) about a pharmacist, a pharmacy or another licensed health professional. It can lead to discipline, such as a fine, probation, a reprimand, or suspension or revocation of a license (LARA).

None of these pauses the deadline to sue: in Michigan, a malpractice deadline pauses for a notice of intent sent in time, not for a report to an agency (MCL 600.5856).

What do you have to prove?

Generally, that the care fell below the standard of care, that this caused your injury, and what the injury cost you (M Civ JI 30.03). In Michigan, you must prove your injury “more probably than not” was caused by the negligence (MCL 600.2912a(2)), and jurors can be told that “a doctor is not liable merely because of an adverse result” (M Civ JI 30.04).

These cases usually turn on experts. In a Maryland case, a hospital doctor treated a 63-year-old patient’s high potassium in 2013 with Kayexalate in sorbitol, along with dialysis; the patient developed ischemic colitis that progressed to necrosis (tissue death) of the colon, and he died. His family’s experts said the standard of care called for dialysis alone; the doctor argued it wasn’t generally accepted that the drug could cause that damage. A Baltimore City jury awarded $10 million in noneconomic damages in 2016, the judge cut it to $906,250 under Maryland’s malpractice cap, and the Court of Special Appeals of Maryland affirmed in 2018 (Burks v. Allen; The Baltimore Sun). Past results don’t guarantee a similar outcome, and Michigan’s cap is different (below).

What are Michigan’s rules for a medication error claim?

See Michigan medical malpractice law for each step in order, and injury deadlines in every state for other states.

What if a family member died?

The family may have a wrongful death claim; see how wrongful death claims work.

What to do next

1. Take care of your health first, and don’t stop or change a prescribed medicine without talking to your doctor or pharmacist.
2. Keep the evidence: the container, the label, any leftover pills, the receipt and a written timeline.
3. Request your records in writing from the prescriber, the pharmacy and any hospital or nursing home involved.
4. Get a case review well before your deadline, because a notice of intent usually needs your records and an expert’s review. Get a free case review, or compare Michigan injury lawyers. For a quick self-check first, see what to do if you think you have a malpractice case.
5. Get the fee agreement in writing. In Michigan, a contingency fee in an injury case can’t be more than one-third of the recovery after case costs, and the agreement must be in writing (MCR 8.121). See how injury lawyers get paid.

What waiting can cost

• The claim itself. A late malpractice action “is barred” (MCL 600.5838a(2)). In Simmons, the customer negotiated with the drugstore company and then sued two years and eight days after the prescription was filled; the Court of Appeals held that he was too late.
• The pause. A notice of intent pauses the clock only if it goes out before the deadline passes (MCL 600.5856(c)).
• Evidence. Containers get thrown out and memories fade. Keep your own receipt: a Michigan pharmacist has to keep a copy for only 90 days (MCL 333.17757(7)).

What a good outcome looks like

You’re getting the care you need, on medicines you and your doctors trust. Your records are in hand, and a qualified expert has told you whether the prescribing, dispensing, giving or monitoring of your medicine fell below the standard. If it did, the claim was brought on time and under the right rules, and those responsible pay for your care, lost income and what you went through, within Michigan’s limits. If it didn’t, you have a clear answer and can focus on getting well. From wondering whether it was a mistake or a side effect to knowing what happened, who is responsible and how long you have to act.

For other medical mistakes, see the complete medical malpractice guide, how misdiagnosis claims work and what to do after a surgical error, or browse all medical malpractice guides.

Updated September 28, 2026

This guide is general information, not legal advice, and laws change. For advice about your situation, talk to a lawyer licensed in your state. Reading this page or contacting us does not create an attorney-client relationship.